Extradition procedures for the Megaupload Four

Today the FBI shut down Megaupload and its affiliated sites in the USA. It is also been reported that the raid as extended to New Zealand, with four people being arrested in Auckland this morning, including Megaupload's Kim Schmitz (aka Dotcom).

The arrests were made by the New Zealand Police, working under direction of the OFCANZ, who has been working with the FBI over the past month. The four arrested have been charged with "online piracy", and they face extradition to the USA.

Under New Zealand extradition law, those arrested will face extradition only if:

i. the conduct as it occurred in the jurisdiction of New Zealand it would have been an offence under New Zealand law; and

ii. the offence would have been punishable by 12 months imprisonment or more. [1]

The legal question, therefore, is whether or not the alleged offences are also offences in New Zealand, and to what standard any elements will have to be proved in an extradition.

Copyright offences are generally treated as a civil matter – but under section 131 of the New Zealand Copyright Act, a person is liable for imprisonment not exceeding five years for offences relating to serious (eg commercial) infringement. It has not yet been announced by Police exactly what crime the four arrested have been charged with, but it is likely this section will be used. Below are the likely relevant sub-sections (edited for convenience):

(1) every person commits an offence against the section if "in the course of a business… distributes … an object that is, and that the person knows is, an infringing copy of a copyright work."

(2) every person commits an offence against the section who "makes an object specifically designed or adapted for making copies of a particular copyright work … knowing that the object is to be used to make infringing copies for sale or hire or for use in the course of a business."

The standard to which extradition is granted, is if the evidence is sufficient to justify the person’s committal for trial – if the alleged offence had been committed in New Zealand.[3] So, had the four been arrested by New Zealand Police independently, and had they been charged under the equivalent New Zealand offence, there would have to be enough evidence to commit them to trial here, both in regards to establishing the elements of the offending, and in identifying them as the people who committed the offending pursuant to the relevant provisions of the Summary Proceedings Act.[2] So, for the four to be extradited, it will have to be shown that their actions constitute a prima facie case of infringement or offending under section 133 of the Copyright Act 1994.[3]

Megapload, based in Hong Kong, is an on-line storage provider or "cyberlocker", (much like iCloud) in which users can upload and download files, usually too large to send by email. The website allowed users to download content such as films, TV shows, games, music and other content for free, but made money by charging subscriptions to people who wanted access to faster download speeds or extra content. Whether or not this constitutes knowingly distributing copyrighted material, or making an object designed for making copies of copyrighted works, I don't know. Ultimately it is a complex legal question, so I will leave it open.

NOTES:

[1] Extradition Act 1999 s 4.
[2] Summary Proceedings Act 1957, s 184G.
[3] Laws of New Zealand, (LexisNexis NZ Ltd, 2012), Criminal Law, Extradition, at [73]; and Treaty on Extradition between New Zealand and the United States of America (Washington, 12 January 1970, NZTS 1970 No 7), Art IV.

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